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Wilhelmsson, Thomas; Willett, Chris --- "Unfair Terms and Standard Form Contracts" [2010] ELECD 172; in Howells, Geraint; Ramsay, Iain; Wihelmsson, Thomas; Kraft, David (eds), "Handbook of Research on International Consumer Law" (Edward Elgar Publishing, 2010)

Book Title: Handbook of Research on International Consumer Law

Editor(s): Howells, Geraint; Ramsay, Iain; Wihelmsson, Thomas; Kraft, David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201287

Section: Chapter 7

Section Title: Unfair Terms and Standard Form Contracts

Author(s): Wilhelmsson, Thomas; Willett, Chris

Number of pages: 34

Extract:

7. Unfair terms and standard form contracts
Thomas Wilhelmsson and Chris Willett



1. Fairness of contracts ­ posing the problem
One of the core problems both in general contract law and in particular in
consumer contract law is how law should react to contract terms that appear
as one-sided, unbalanced or unfair ­ many attributes have been used in this
discourse. To what extent should unfair clauses be recognised as binding and
should the law interfere against use of such clauses in other ways? Or should
one assume that contracts almost per definitionem should be regarded as
balanced, as they are based on the will of the parties?
The issue of how to guarantee or promote fairness of contracts is often
described in terms of dichotomies like freedom of contract versus fairness or
freedom versus paternalism. However, this can oversimplify the issue. For
example, to regard procedural fairness rules as opposite to freedom of contract
can be misleading. Rules, to be described below, that require the party using
standard terms to let the other party acquaint itself with them and even to `flag'
particularly onerous terms, can equally well be understood as devices to make
sure that the decision-making of the party receiving the terms is sufficiently
informed and `free' (although these rules, as well as those regulating the
substance of the terms, may be viewed as a rejection of a particular form of
freedom, that is, a libertarian form of freedom that emphasises self-reliant,
self-interested freedom). The ...